Opinion
H045760
12-10-2019
THE PEOPLE, Plaintiff and Respondent, v. RUDY VALENTINO REVILLAS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. SS170914A)
Rudy Valentino Revillas was convicted after a court trial of one count of simple stalking (Pen. Code, § 646.9, subd. (a)); vandalism causing damage over $400 (§ 594, subd. (b)(1)); stalking after issuance of a restraining order (§ 646.9, subd. (b)); dissuading a witness by force or threat (§ 136.1, subd. (c)(1)); three counts of dissuading a witness (§ 136.1, subd. (a)(2)); possession of a firearm by a felon (§ 29800, subd. (a)(1)); two counts of disobeying a court order (§ 273.6, subd. (a)); and 18 counts of violating a criminal protective order (§ 166, subd. (c)(1)).
All subsequent statutory references are to the Penal Code.
On appeal, Revillas asserts that he should have been convicted of only one count of stalking rather than two because his conduct occurred over a continuous period of time with no interruption. He also argues that he should not have been convicted of two counts of dissuading a witness because those counts alleged the same offense against the same victim on the same date. Finally, Revillas argues that if we reverse any of his convictions, his fines and fees for those convictions also should be stricken.
In his opening brief, Revillas argued that his conviction for possession of a firearm by a felon (§ 29800, subd. (a)(1)), should be stricken because his prior conviction for violation of Health and Safety Code section 11377, was reduced to a misdemeanor. Revillas withdrew this argument in his reply brief.
We agree with Revillas that the trial court erred when it convicted him of two counts of stalking for his continuous conduct toward the victim. We will vacate his conviction and concurrent sentence for simple stalking (§ 646.9, subd. (a)), and strike the fees associated with this conviction. In all other respects, we will affirm the judgment.
I. STATEMENT OF THE FACTS AND CASE
The trial court considered the following evidence at a court trial on an amended information: Revillas and Jane Doe have a son together and were in an intimate relationship for 12 years, which ended in late 2013. After the relationship ended, Doe attempted to restrict her interactions with Revillas to those necessary to raise their son. Between 2014 and 2016, Revillas began to harass and threaten Doe. This conduct included incidents in which Revillas came to Doe's home uninvited, left threatening messages on her voicemail, and placed pictures and letters on the windshield of her car. Revillas also vandalized Doe's car.
Doe sought a restraining order against Revillas on October 4, 2016, and the court issued the order on October 27, 2016. Revillas continued to harass Doe after the issuance of the restraining order. In November 2016, Doe drove to a bar. As she traveled to the bar, she saw Revillas riding his bike toward her house. Revillas followed Doe; when she arrived at the bar, she got out of her car to find Revillas standing in front of her, attempting to block her path. After a short period of time, Revillas moved out of Doe's way and she was able to walk into the bar. Doe left the bar an hour later and found the tires of her car had been slashed. Shortly thereafter, Doe saw Revillas again, and he threw a street sign at her car, causing damage to the body of the automobile. Doe encountered Revillas a third time that night; he threw a rock at her windshield.
In February 2017, Revillas came to Doe's home and knocked on her garage door. When Doe told Revillas she was going to call the police, Revillas knocked the cell phone out of her hand, and then grabbed the phone and threw it on the roof of the neighbor's house. Doe quickly found the paperwork for the restraining order and drove to the police station. Revillas followed on his bicycle, but rode away once Doe arrived at the station. In March 2017, Revillas threw a phone at Doe's car while their son was sitting in the passenger's seat. In May 2017, Revillas came to Doe's house at 1:45 a.m. and banged on the garage door.
Following the May 2017 incident, Revillas was arrested. Revillas called Doe 86 times while he was in jail between June and August 2017. In June 2017, Revillas called Doe's friend, who was aware of his harassment of Doe, and told her: "Don't show up to court, okay." Revillas also called Doe's phone and spoke to their son, telling him: "If she [Doe] don't go to court next week, I'll be able to go home next week." Revillas further stated, "Well, tell your mom though. Just tell your mom, 'Don't go to court.' " After he was done talking to his son, Revillas asked to talk to Doe. While talking to Doe, he directed her not to attend court. He indicated that if she did go to court, he would "do what I gotta do too, I will, dude." He further stated, "And like if you wanna incriminate me, I will incriminate you, dude."
After Revillas was arrested, police searched his home and found a stolen firearm. Police also reviewed Revillas's cell phone records which showed that he had texted Doe 500 to 600 times before his arrest.
Revillas testified that commencing in October 2016, he and Doe shared joint custody of their son. Revillas said that he sent text messages and left voicemails for Doe out of frustration or, on some occasions, because he and Doe were arguing. Revillas denied ever vandalizing Doe's car or throwing her cell phone onto her neighbor's roof. Revillas said that when he encountered Doe at the bar in November 2016, he was trying to ask her about their son. He denied slashing her tires, throwing a rock or throwing a street sign at Doe's car. Revillas indicated that when he knocked on Doe's garage door in May 2017, he was trying to ask about his son. Revillas testified that he did not know there was a gun in his room and did not know where it came from. Revillas stated that when he told Doe and her friend not to testify in court, he meant that he did not want them to lie.
In November 2017, Revillas was charged by amended information with 34 crimes; 10 of the charged crimes were felonies, and the remainder were misdemeanors. The 10 felonies were: stalking (§ 646.9, subd. (a) - count 1); vandalism causing damage in excess of $400 (§ 594, subd. (b)(1) - count 2); stalking after issuance of a restraining order (§ 646.9, subd. (b) - count 3); dissuading a witness by force or threat (§ 136.1, subd. (c)(1) - count 4); two counts of failure to appear while on bail (§ 1320.5 - counts 5-6), with a special allegation for each count that the offense was committed while he was on bail (§ 12022.1, subd. (b)); three counts of attempting to dissuade a witness (§ 136.1, subd. (a)(2) - counts 7-9); and possession of a firearm by a felon (§ 29800, subd. (a)(1) - count 10). The misdemeanor offenses were as follows: two counts of disobeying a court order (§ 273.6, subd. (a) - counts 11 & 13); and 22 counts of violating a criminal protective order (§ 166, subd. (c)(1) - counts 12, 14-34). The court dismissed counts 14, 15, 24, and 25, misdemeanor violations of a criminal protective order (§ 166, subd. (c)(1).)
Revillas waived his right to a jury trial based on the understanding that he would be tried by the court, and that if convicted, he would be sentenced within a range of five to eight years. Following a court trial, Revillas was found not guilty of counts 5 and 6, felony failure to appear while on bail (§ 1320.5.) The court found Revillas guilty of the remaining counts: stalking (§ 646.9, subd. (a) - count 1); vandalism causing damage over $400 (§ 594, subd. (b)(1) - count 2); stalking after issuance of a restraining order (§ 646.9, subd. (b) - count 3); dissuading a witness by force or threat (§ 136.1, subd. (c)(1) - count 4); three counts of dissuading a witness (§ 136.1, subd. (a)(2)- counts 7-9); possession of a firearm by a felon (§ 29800, subd. (a)(1) - count 10); two counts of disobeying a court order (§ 273.6, subd. (a) - counts 11 & 13); and 18 counts of violating a criminal protective order (§ 166, subd. (c)(1) - counts 12, 13, 16-23, 26-34).
The court sentenced Revillas to seven years eight months in prison. The court selected count 3, the conviction for section 646.9, subdivision (b) as the principal term and imposed four years in prison. The court imposed a consecutive term of three years for count 4 (§§ 136.1, 1170.15) and eight months consecutive for count 10 (§ 29800, subd. (a)(1)) to reach the sentence of seven years eight months in prison. In addition to fines and fees, the court sentenced Revillas to concurrent sentences on the remaining charges, including three years concurrent for simple stalking for count 1 (§ 646.9, subd. (a)). Revillas filed a timely notice of appeal.
II. DISCUSSION
A. Stalking as a Continuing Offense
Revillas was convicted of two counts of stalking. In count 1, Revillas was found guilty of stalking between September 13, 2014, and October 27, 2016, in violation of section 646.9, subdivision (a), and in count 3, he was found guilty of stalking after the issuance of a restraining order between October 27, 2016, and August 12, 2017, in violation of section 646.9, subdivision (b). He asserts that because the stalking occurred over a single period of time between 2014 and 2017, it is a continuing crime and he should have been convicted of only one count.
Whether a violation of law is considered a continuing crime is primarily a question of statutory interpretation, which we review de novo. (People v. Chilelli (2014) 225 Cal.App.4th 581, 586 (Chilelli).) "In construing a statute, our role is to ascertain the Legislature's intent so as to effectuate the purpose of the law. [Citation.] In determining intent, we must look first to the words of the statute because they are the most reliable indicator of legislative intent. [Citation.] If the statutory language is clear and unambiguous, the plain meaning of the statute governs. [Citation.]" (Ibid.)
It is well established that stalking is a continuous offense, and the parties do not dispute this point. "The Legislature has defined stalking as a crime requiring a continuous course of conduct. [Citations.] Section 646.9, subdivision (a) states, 'Any person who willfully, maliciously, and repeatedly follows or willfully and maliciously harasses another person and who makes a credible threat with the intent to place that person in reasonable fear for his or her safety, or the safety of his or her immediate family is guilty of the crime of stalking....' (Italics added.) Section 646.9, subdivision (e) defines 'harasses': 'For the purposes of this section, "harasses" means engages in a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, torments, or terrorizes the person, and that serves no legitimate purpose.' (Italics added.) Section 646.9, subdivision (f) defines 'course of conduct': 'For the purposes of this section, "course of conduct" means two or more acts occurring over a period of time, however short, evidencing a continuity of purpose. Constitutionally protected activity is not included within the meaning of "course of conduct." ' (§ 646.9, subd. (f), italics added.) The clear and unambiguous language of section 646.9 defines stalking as a continuous course of conduct crime." (Chilelli, supra, 225 Cal.App.4th at p. 586.)
Conceding that stalking is a continuous course of conduct offense, the Attorney General nonetheless argues that Revillas was properly convicted of two counts of stalking because each count charged here covered a separate time period and harassing behavior. Count one, charging a violation of section 646.9, subdivision (a), addressed Revillas's harassing conduct between September 13, 2014, and October 27, 2016, prior to the issuance of a restraining order protecting Doe from him. That section provides: "Any person who willfully, maliciously, and repeatedly follows or willfully and maliciously harasses another person and who makes a credible threat with the intent to place that person in reasonable fear for his or her safety, or the safety of his or her immediate family is guilty of the crime of stalking, punishable by imprisonment in a county jail for not more than one year, or by a fine of not more than one thousand dollars ($1,000), or by both that fine and imprisonment, or by imprisonment in the state prison." (§ 646.9, subd. (a).) Count 2, charging a violation of section 646.9, subdivision (b), was directed to the period after the restraining order was in effect, between October 27, 2016, and August 17, 2017. That section provides: "Any person who violates subdivision (a) when there is a temporary restraining order, injunction, or any other court order in effect prohibiting the behavior described in subdivision (a) against the same party, shall be punished by imprisonment in the state prison for two, three, or four years." (§ 646.9, subd. (b).) As posed by the Attorney General, "the issue is whether appellant committed a separate offense when he stalked Doe after the court issued a restraining order prohibiting that conduct."
The issue of whether section 646.9, subdivision (b) constitutes a separate substantive offense or, to express it differently, whether section 646.9, subdivision (b) defines a crime with its own elements, was addressed in People v. Muhammad (2007) 157 Cal.App.4th 484 (Muhammad). The First District Court of Appeal considered whether the defendant was erroneously convicted of four separate counts of stalking including simple stalking (§ 646.9, subd. (a)), stalking in violation of a restraining order (§ 646.9, subd. (b)), stalking with a prior terrorist threats conviction (§ 646.9, subd. (c)(1)), and stalking with a prior felony stalking conviction (§ 646.9, subd. (c)(2)). Each of the four counts was based on the same course of harassing conduct committed against the victim between December 17, 2003, and December 10, 2004. (Id. at pp. 486, 489.) Muhammad asserted that he was erroneously convicted of all but one count of stalking "because subdivisions (a), (b), (c)(1) and (2) of section 646.9 do not describe four separate offenses but describe alternative punishments for the single offense of stalking." (Id. at p. 486.) The Attorney General argued that the subdivisions described separate substantive offenses with separate elements and therefore the defendant was properly convicted on all counts.
The appellate court cited People v. Kelley (1997) 52 Cal.App.4th 568 (Kelley), to conclude that section 646.9, subdivision (b) does not define a separate substantive offense. Kelley held, in the context of a defendant's challenge to a conviction for sections 646.9, subdivision (b) under the double jeopardy clause of the Fifth Amendment, "[The defendant] incorrectly assumes section 646.9 defines the crime of stalking in violation of a restraining order. The section merely defines stalking. The provisions relating to the violation of a restraining order do not define a crime. They merely create a punishment enhancement." (Id. at p. 576, fn. omitted.)
Although it agreed with Kelley that section 646.9, subdivision (b) did not describe a substantive offense, the court in Muhammad further refined the statutory analysis of section 646.9. "Our conclusion that subdivisions (a), (b) and (c) of section 646.9 do not create separate offenses is confirmed by examining the definition of the terms 'offense,' 'enhancement,' and 'penalty provision.' [¶] A substantive 'crime or public offense' is defined as 'an act committed or omitted in violation of a law forbidding or commanding it, and to which is annexed, upon conviction, either of the following punishments: [¶] 1. Death; [¶] 2. Imprisonment; [¶] 3. Fine . . . .' (§ 15.) [¶] 'By definition, a sentence enhancement is " 'an additional term of imprisonment added to the base term.' [Citations.]" (Muhammad, supra, 157 Cal.App.4th at p. 492.) The court determined that "subdivisions (b), and (c)(1) and (2) of section 646.9 are not sentence enhancements; they clearly do not add an additional term of imprisonment to the base term." (Ibid.) Rather, these subdivisions of section 646.9 are penalty provisions. " 'The California Supreme Court has recognized, however, that statutory provisions which are not "enhancements" in the strict sense are nevertheless "penalty provisions" as opposed to substantive offenses where they are "separate from the underlying offense and do[] not set forth elements of the offense or a greater degree of the offense charged. [Citations.]" ' [Citations.]" (Ibid.) "[A] penalty provision does not define a substantive offense, but ' " 'focus[es] on an element of the commission of the crime or the criminal history of the defendant which is not present for all such crimes and perpetrators and which justifies a higher penalty than that prescribed for the offenses themselves.' [Citation.]" [Citations.]' [Citation.]" (Id. at pp. 492-493.)
After considering the structure and language of section 646.9, the court concluded that subdivisions (b) and (c) of section 646.9 do not define separate substantive offenses; rather, section 646.9, subdivision (a), sets out the elements of the crime of stalking, and section 646.9, subdivisions (b) and (c), "are penalty provisions triggered when the offense of stalking as defined in subdivision (a) . . . is committed by a person with a specified history of misconduct." (Muhammad, supra, 157 Cal.App.4th at p. 494.) Although the defendant in Muhammad was charged in four separate counts, he could only be convicted of a single count of stalking for his continuing conduct; the appellate court vacated three of the defendant's four stalking convictions. (Id. at pp. 494-495.)
The Attorney General acknowledges that Muhammad holds that stalking is a continuing offense, and that section 646.9, subdivision (b), defines a penalty provision rather than a substantive offense. However, he argues that Muhammad does not apply in a case such as this, where each count of stalking is alleged to define a separate time period. In Muhammad, the four counts of stalking "involved the identical course of conduct committed against [the victim] between December 17, 2003, and December 10, 2004." (Muhammad, supra, 157 Cal.App.4th at p. 489.) Here, the Attorney General asserts that Revillas's conduct was delineated by the issuance of the restraining order on October 27, 2017, and that as a result, he committed a separate substantive stalking offense on that date and for the continuous time period thereafter.
The Attorney General cites People v. Meeks (2004) 123 Cal.App.4th 695 (Meeks), in support of its arguments. In Meeks, the defendant was convicted of two counts of violating the continuing offense of failing to register as a sex offender (§ 290). The two counts alleged that the defendant failed to register as required by law within five days of changing his address, and within five days of his birthday. (Meeks, supra, pp. 699-700.) The Third District Court of Appeal held that while the crime of failing to register is a continuing offense, the defendant could be convicted of two counts because he violated section 290 in two different ways. (Id. at pp. 702-703.) In reaching its conclusion, the court explained that prohibiting multiple convictions under the circumstances was inconsistent with the intent of the statute. "[S]imply because the Legislature intended that a violation of section 290 be a continuing offense does not mean that a defendant cannot be convicted and punished for new and separate violations of section 290 as he continues to ignore the law. [¶] . . . By requiring defendants to register annually and with every change of residence, it was no doubt the Legislature's intent to treat each violation of the registration requirements as a separate, continuing offense in order to encourage compliance with the law and to ensure to the extent possible that a sex offender's whereabouts remain known." (Id. at pp. 702-703.) By analogy, the Attorney General argues here that by stalking Doe, Revillas violated section 646.9 in one way; by stalking Doe after a restraining order was issued by the court, he violated section 646.9 in another. As a result, if Revillas were punished for only one violation of section 646.9, he would not be punished for the period of time he stalked Doe before the restraining order issued.
We are not persuaded. Meeks is inapposite here because section 290 and the Sex Offender Registration Act are structured to define multiple substantive continuous crimes, not to define a continuous crime with attendant penalty provisions. Section 290 sets forth the duty of a defendant convicted of certain crimes to register as a sex offender. As described in the Sex Offender Registration Act, which includes sections 290 to 290.024, the registration requirement is triggered by numerous life events, including the defendant's birthday, change of address, release from county jail or state prison, or transient status. Failure to register after each defined event creates a separate, continuing offense. As stated in Meeks, "Under section 290, a failure to register when one moves to a different residence is a continuing offense; a failure to register on the event of the defendant's birthday is a separate continuing offense. . . . Had the prosecution charged a separate offense for each day of defendant's failure to register when he changed his address, the defendant would then have been subjected improperly to multiple convictions for a single criminal act." (Meeks, supra, 123 Cal.App.4th at p. 702.)
Nothing in the analysis of Meeks causes us to reconsider the conclusion of Muhammad that as a matter of law, section 646.9 "sets out in several subdivisions the definition of stalking as well as alternate penalties for the offense that depend upon the stalker's criminal history." (Muhammad, supra, 157 Cal.App.4th at p. 486.) The legislative drafters of section 290 and the Sex Offender Registration Act addressed the intent to monitor sex offenders by targeting their release from custody (§§ 290; 290.011; 290.015), entry into a community or change of address (§§ 290; 290.011; 290.012), transient status (§ 290.011), and birthday (§ 290.012). But notably, the statute contains no additional or enhanced penalties for failing to register under certain circumstances.
With respect to stalking, as described in Muhammad, the Legislature elected to draft section 646.9 differently, by defining simple stalking, and providing that a higher sentence should be imposed if an offender commits that defined crime when a restraining order has issued or after suffering certain convictions. (§ 646.9, subds. (b), (c).) Indeed, the increased penalty dictated for stalking when a restraining order has been issued precludes the possibility that a trial court could grant probation and mandates a state prison sentence, as the offender "shall be punished by imprisonment in the state prison for two, three or four years." (§ 646.9, subd. (b).) By structuring the stalking statute as one continuing criminal offense with attached penalty provisions, the Legislature expressed its determination to severely punish persons who stalk after the issuance of a restraining order. But as a matter of legislative election, section 646.9, subdivision (b) does not qualify as a separate continuous crime with its own defined elements.
Neither are we persuaded by the Attorney General's argument that Revillas's conduct occurred in two separate and distinct time periods that legally justified two separate continuous stalking charges. It was the prosecutor's discretionary act that divided the period of criminal conduct spanning September 13, 2014, to August 17, 2017 into two counts. But under the facts of this case, there was no interruption in Revillas's harassment of Doe for almost three years; it continued unabated with the same intent and purpose. These facts are consistent with the definition of "course of conduct" as "two or more acts occurring over a period of time, however short, evidencing a continuity of purpose" in section 646.9, subdivision (f), and thus of the continuous crime of stalking. The prosecutorial decision to charge two counts rather than one, where the two counts addressed an unbroken period of criminality and where the charged counts shared an offense date (October 27, 2016), did not create two separate continuous criminal offenses, but improperly produced two convictions for one continuous crime.
We conclude that Revillas could only be convicted of one count of stalking. Because Revillas's ongoing harassment was not deterred by the court's issuance of a restraining order during that period of continuous criminal conduct, he was subject to the increased penalty provisions established in section 646.9, subdivision (b). These increased penalties provide that Revillas could not be granted probation with an attendant jail sentence, but "shall be punished by imprisonment in the state prison for two, three, or four years." (§ 646.9, subd., (b).) Here, the trial court selected the count 3 conviction for section 646.9, subdivision (b) as the principal term and imposed the maximum sentence allowed under that section. We affirm that conviction and vacate the conviction and lesser concurrent sentence imposed by the trial court on count 1 for simple stalking. (§ 646.9, subd. (a).)
Because we are reversing Revillas's conviction for simple stalking (§ 646.9, subd. (a)), we do not consider Revillas's alternative argument that simple stalking is a lesser included offense of stalking in violation of a restraining order (§ 646.9, subd. (b)). --------
B. Dissuading a Witness
Revillas was convicted in counts 8 and 9 of attempting to dissuade a witness (§ 136.1, subd. (a)(2)). Revillas argues that the trial court erred when it convicted him of both counts of attempting to dissuade a witness because the two counts described "exactly the same offense [dissuading a witness], on the same date, against the same victim."
Counts 8 and 9 are based on a phone call Revillas made from jail to Doe's home with the intent of dissuading her from going to court to testify against him. At the beginning of the call, Revillas spoke to their son, telling him about Doe, "If she don't go to court next week, I'll be able to go home next week." Revillas went on to say, "Well, tell your mom though. Just tell your mom, 'Don't go to court.' " After he was done talking to his son, Revillas asked to talk to Doe. While talking to Doe, he told her not to go to court, and stated if she did go to court, he would "do what I gotta do too, I will, dude." He further stated, "And like if you wanna incriminate me, I will incriminate you, dude."
Whether section 136.1, subdivision (a)(2), allows multiple convictions for "exactly the same offense [dissuading a witness], on the same date, against the same victim," is a question of statutory interpretation, which we consider de novo. (See, Chilelli, supra, 225 Cal.App.4th at p. 586.) We consider the plain language of the statute to determine the Legislature's intent. (Ibid.) Section 136.1, subdivision (a)(2) defines attempted witness dissuasion as follows: "(a) [A]ny person who does any of the following is guilty of a public offense . . . (2) Knowingly and maliciously attempts to prevent or dissuade any witness or victim from attending or giving testimony at any trial, proceeding, or inquiry authorized by law." We note that there is no language in the statute indicating that multiple acts committed with the same intent to persuade the same victim cannot be separately charged nor is there any language suggesting dissuading a witness is a continuing crime.
In People v. Kirvin (2014) 231 Cal.App.4th 1507, 1519 (Kirvin), the Second District Court of Appeal found that multiple convictions for violating section 136.1, subdivision (a)(2) against the same victim were proper when the defendant committed discrete acts attempting to dissuade the victim from testifying against him. In Kirvin, the alleged counts were based on separate phone calls the defendant made to his sister urging her to persuade a specific witness not to testify in an upcoming case. The court held that the defendant was properly charged with multiple counts of violating the statute because "[a] separate violation of section 136.1, subdivision (b)(2), was completed each time [the defendant] placed a call to his sister urging her to persuade [the witness] not to go to court." (Id. at p. 1519.) Observing that all of the defendant's calls were directed toward the goal of persuading his sister to convince the witness not to testify, the court found that common intent irrelevant to the analysis of whether multiple counts could be alleged against the defendant. (Ibid.)
Although Revillas made only one call attempting to dissuade Doe from testifying, the analysis of Kirvin is applicable to this case. The evidence supports the conclusion that Revillas committed two discrete acts of dissuasion during the single phone call to Doe's home. Although Revillas dialed one phone number from the jail, he engaged in two separate conversations with two different people. In the first, he pressured his son to tell Doe not to come to court; in the second, he threatened Doe herself to deter her from testifying. Revillas first attempted to dissuade Doe from cooperating with the prosecution of his case by using his son as his emissary; thereafter Revillas himself threatened the victim with consequences if she testified in court. We further observe that Revillas's use of their child to dissuade Doe was an act of manipulation, both of the child and of Doe, designed to appeal to Doe's parental emotions. It was thus distinct in character from the blunt threats Revillas directed to Doe herself later in the telephone call that were designed to frighten her. Although the conversations shared the same objective, which was to deter Doe from attending court, the two conversations were distinct, utilizing separate and powerful approaches to Doe, that increased Revillas's culpability here. " 'A person who commits separate, factually distinct, crimes, even with only one ultimate intent and objective, is more culpable than the person who commits only one crime in pursuit of the same intent and objective. [Citation.]' " (People v. Correa (2012) 54 Cal.4th 331, 341.) We conclude that although Revillas made only one call from the jail with the single intent of dissuading Doe, he was properly convicted of two counts of attempting to dissuade a witness because he committed two separate acts to achieve his intent.
C. Reduction of Fines and Fees
Revillas argues, and the Attorney General concedes that if we reverse any of the convictions, the criminal fines and fees associated with those convictions must be stricken. We are vacating Revillas's conviction on count 1 for simple stalking in violation of section 646.9, subdivision (a). As a result, Revillas's fees for that count must be stricken.
The record shows the court did not impose any fines for Revillas's conviction on count 1; however, the court did order Revillas to pay a court operations fee of $40 (§ 1465.8), and a court facilities fee of $30 (Gov. Code, § 70373), for each of his convictions. The total court operations fee ordered was $1,120, and court facilities fee was $840. These totals will be reduced by $40 and $30 respectively to reflect the reversal of count 1.
III. DISPOSITION
The conviction in count 1 of stalking in violation of Penal Code section 646.9, subdivision (a), and the concurrent sentence of three years in state prison imposed for that count, are vacated. The court operations fee pursuant to Penal Code section 1465.8, is ordered reduced by $40 for a new total of $1,080. The court facilities fee pursuant to Government Code section 70373, is ordered reduced by $30 for a new total of $810. The abstract of judgment shall be corrected to reflect these changes. In all other respects, the judgment is affirmed.
/s/_________
Greenwood, P.J. WE CONCUR: /s/_________
Grover, J. /s/_________
Danner, J.